oct ewj 24 online - Flipbook - Page 71
risks of non-attendance.27 Their actions though
negligent are not illogical and are not unreasonable.
incapable of objective and fair measurement of guilt.
Involuntary manslaughter is such a wide-ranging offence whose fault level of the defendant varies widely.
No one would argue with the fault level of an individual who has a foresight of death and continues to act
resulting in their patient’s death, but what of the fault
level of someone acting at the lower boundary of this
culpability level; those that pursue lawful activities yet
death ensues? The border between accidental killing
and a homicide conviction needs to be applied with
precision and consistency. Often it is a reprieve to
judges to leave this to the jury, but the jury must receive adequate direction and be mindful of expert witnesses trying to influence them inappropriately. If one
incorporates culpability into a test for GNM then the
phrase “it is a crime if the jury think it ought to be a crime”
may be redundant.
Moving on along the “Robson sliding scale” let us now
look at “Wednesbury unreasonableness”. In this case
the Court of Appeal held that the Wednesbury Corporation had acted reasonably and intra vires when it
granted Associated Provincial Picture Houses a licence
under the Sunday Entertainments Act 1932 to show
films in its cinema on a Sunday which was subject to a
condition that no children under the age of 15 years
should be admitted on a Sunday with or without an
adult.28 This case introduced a test for reasonableness
of an administrative decision, which became known
as “Wednesbury unreasonableness”. Lord Diplock commented on this ‘irrationality’ and he went to say: ‘It applies to a decision which is so outrageous in its defiance of
logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could
have arrived at it.’ 29 In fact there are two limbs to
Wednesbury unreasonableness. The first limb has as
its focus the decision-making process of the public
body and the emphasis is whether that body has taken
into account the right issues when it reaches its decision. The second limb focuses on outcomes; even
though the right things have been taken into account,
the result is so outrageous that no reasonable decision
maker could have reached it. Applying this to Bolitho,
Dr Horn was aware of the risks of grave danger and
knowingly took it. It could be argued that Wednesbury unreasonableness applied in the medical setting
is merely Cunningham Recklessness in another format.
Robson links the concept of bad faith to medical negligence: A doctor acting in bad faith knowingly adopts
a course of action that results in death – they are negligent, culpable and a criminal. A doctor that knowingly disregards a risk and embarks on an illogical
course of action that no sensible person would arrive
at would have his actions described as illogical, grossly
unreasonable and potentially criminal.30
A Sliding Scale of Negligence
If one supports the notion that a defendant’s state of
mind is not required to be relevant to convict, then as
a measure of culpability we have to find an alternative.
We could look to how far below the professional standard the defendant’s conduct fell.23 Based upon this,
Robson contends, we need to differentiate actions that
are merely negligent from acts that attract criminal
censure. It is proposed that civil and administrative
law can be utilised in a new GNM test, one that involves a sliding scale, the end point of which negligence would be considered gross and potentially
culpable. This would mean working through the
various formulations already noted in case law.
The problem with Bolam was that it had a simplistic
view, deferential to the medical profession, and one
that led rarely to a finding of criminality.24 In this, the
“first point” on the sliding scale, negligence “simply
describes the harm resulting from a breach of duty with no
element of culpability implied”.
The Bolitho test is of significance, as the court has to be
satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a
logical basis.25 It dictates that, while it may be possible
to find a number of medical professionals who argue
that they would have acted in a particular way, it is the
responsibility of the Court to determine whether or
not that particular course of action would have been
logical. This then aligns the doctor’s action with logic.
Is it possible to link logic with negligence? If a doctor
has behaved with a complete disregard for an accepted or modern practice and has shown an indifference to an obvious risk of serious injury to the
patient, they can be said to be behaving illogically. An
action is grossly negligent if, according to Brazier and
Alghrani, a doctor has shown indifference to an obvious risk.26 By substituting “illogicality” for “indifference”
Robson contends a clearer outcome may be produced.
She cites the example of Dr Rodgers in Bolitho who
may have been negligent for not attending Patrick
Bolitho, but she was unaware of the impending crisis,
and not aware of the risks of non-attendance and was
not criminally liable. This is a situation similar to Dr
Rudling, who may have been negligent for not attending to her young patient, but was not aware of the
EXPERT WITNESS JOURNAL
Applying this to Adomako we have a negligent doctor
(he failed to notice the disconnection of the anaesthetic
tube), who was indifferent to the obvious risk to his
patient, and by Brazier and Alghrani’s formulation his
actions were gross. His illogical actions were that he
failed to monitor his patient properly. Knowing this
he made a conscious, and unreasonable, choice to do
nothing. So his actions were grossly negligent, illogical
and Wednesbury unreasonable.
In Barnett the “duty of a casualty officer is in general to see
and examine all patients who come to the casualty department
of the hospital”.31 Applying this sliding scale, the casualty
officer’s non-attendance was also negligent, illogical
and Wednesbury unreasonable. If applied to Dr
Rudling, which has similarities to Barnett, under the
Robson formulation she may not be exculpated.32 Yet
her actions were proved to be logical and defensible
under the current test. She was not convicted of GNM
on the basis of a serious and obvious risk of death at the
time of the breach not being obvious.
One obvious advantage this test has over the current
test is addressing the negligent action in “all the
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